SZVGT v Minister for Immigration

[2015] FCCA 2279

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2279

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misapplied the test of serious harm in the context of detention affecting the right to liberty.

Legislation:

Migration Act 1958, ss.36, 91R, 474

Federal Circuit Court Rules 2001, r.44.12
United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967, art.1A

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
WZAPN v Minister for Immigration & Border Protection (2014) 229 FCR 477
SZTEQ v Minister for Immigration & Border Protection (2015) 229 FCR 497
Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639

Applicant: SZVGT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2838 of 2014

Judgment of: Judge Cameron

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Sydney

Delivered on: 31 July 2015

REPRESENTATION

Solicitors for the Applicant: Mr P. Rama of Westside Legal

Solicitors for the Respondents: Ms B. Griffin of Australian Government Solicitor

ORDERS

1. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2838 of 2014

SZVGT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 19 June 2012.  On 29 October 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka primarily because of his Tamil ethnicity.  On 21 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims in a statement attached to his protection visa application:

   a)he was born in northern Sri Lanka, but his family moved to Udappu, in western Sri Lanka, in 1995;

   b)one morning in 2010 while on his way to the sea to fish he was stopped by members of the Sri Lankan army.  They spoke to him in Sinhala, which he could not understand, and one of them kicked him on his spinal cord and injured him;

   c)he was hospitalised for five or six months but was discharged before he fully recovered.  Six months after he was discharged he gradually began to walk with the assistance of a support belt;

   d)after his release from hospital he was visited by the army and told to report to a nearby army base every month.  He was afraid to question the army and started reporting to them.  He attended the army base on three occasions and signed a register and then stopped attending because he was afraid of being harmed.  Although the army did not pursue him, he lived in fear that they would and so in June 2012 he fled Sri Lanka illegally;

   e)he was at risk of being harmed by the Sri Lankan authorities because he had left the country illegally, had sought asylum in a western country and because of his Tamil ethnicity.  He was also at risk of being harmed again by the Sri Lankan army;

   f)the authorities in Sri Lanka would not protect him because they are Sinhala and are against all Tamils; and

   g)he did not speak Sinhala and his family lived in Udappu so he could not relocate to another part of Sri Lanka.

2. At his departmental interview the applicant claimed that neither he nor his family had had any dealings with the Liberation Tigers of Tamil Eelam (“LTTE”) or any other political party.  He claimed that he did not know why he was beaten in 2010 or why he was required to report to the army base, although it could have been because he was born in the north.

3. In an additional statement provided to the Tribunal the applicant claimed that he had been a fisherman in Sri Lanka.  The applicant’s representatives submitted to the Tribunal that the applicant feared harm in Sri Lanka because of:

   a)his Tamil race;

   b)his political opinion of being opposed to the Sri Lankan government as a consequence of his race, place of birth in the north of the country and his act of seeking asylum in Australia; and

   c)his membership of two particular social groups, namely, “Tamil failed asylum seekers who left the country illegally” and “young Tamil men who are suspected of associating with or supporting the LTTE”.

4. The applicant’s representatives also submitted that Tamil fishermen in Udappu, of which the applicant had been one, were a minority, that their jobs were insecure and that they were surrounded by Sinhalese villages and the presence of the Sri Lankan navy and army.  They submitted that the fishermen were also automatically treated by security forces as supporters of the LTTE and suspected of smuggling.  The applicant’s representatives further submitted that Tamils in Udappu were at risk of losing their traditional lands as a result of tourist developments.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal accepted that it was plausible that the applicant had been involved in an incident with the Sri Lankan army in 2010 during which he had sustained a back injury.  However, it did not accept that the applicant had been specifically targeted for anything he had personally done or not done or because he was from the north;

   b)the Tribunal found that the applicant had not had any interactions with the authorities after the 2010 incident.  It found that he had not been required to register with the authorities at an army camp, had not been under surveillance and that the authorities had not attended his home on any occasion after the 2010 incident;

   c)the Tribunal noted a fresh claim which the applicant raised at its hearing that, towards the end of his studies, his father had become friendly with two men who gave him two bags of clothes and a boat engine, which they subsequently discovered also contained LTTE material.  Although the Sri Lankan army searched the applicant’s family home, the Tribunal concluded that the material which had been left with the applicant’s father was not discovered.  Relevantly, the Tribunal concluded that the applicant’s late disclosure of this claim was not because he had feared that his family would be harmed but because he had not feared any harm arising out of the incident;

   d)the Tribunal did not accept that the applicant faced harm as a result of his Tamil ethnicity and did not accept his claim that all Tamils in Sri Lanka faced harm because of their race;

   e)the Tribunal did not accept that the applicant faced a real chance of serious harm arising from any imputed pro-LTTE political opinion;

   f)the Tribunal referred to country information about fishermen in Udappu and found that ongoing official management procedures for fishermen, which had been instituted during the civil war, did not amount to a risk of harm to the applicant.  It found that while competition between fishermen would make life more difficult and lead to instances of tension between fishermen, that did not amount to serious or significant harm;

   g)the Tribunal found the applicant’s claim about possible loss of land to tourist development to be vague and unsubstantiated, noting that no information had been provided about what developments were occurring and how they affected the applicant or his family; and

   h)the Tribunal found that the applicant did not face a risk of harm because he was a failed asylum seeker or returnee or because he had left Sri Lanka illegally.  Relevantly, the Tribunal found that the applicant would not face serious or significant harm while imprisoned on remand for a short period for having breached Sri Lanka’s exit restrictions.  It noted that country information identified Tamils with an actual or perceived association with the LTTE, including those returning from abroad, as being at particular risk of torture, but found that the applicant did not have any such links which would cause him to be targeted within the prison system.  It also found that country information did not indicate that Tamil returnees charged with illegal departure and remanded in prison were targeted because of their ethnicity or membership of the particular social groups of Tamil returnees and Tamil asylum seekers.  The Tribunal noted that country information indicated that prison conditions in Sri Lanka might not meet international standards because of a lack of resources, which the Sri Lankan government had acknowledged and was taking steps to address, rather than because of an intention by the government to inflict cruel or inhuman treatment or punishment or to cause extreme humiliation.  In those circumstances, the Tribunal found that the poor prison conditions did not give rise to significant harm under Australian law.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal made jurisdictional error

   The RRT has applied the incorrect test pursuant to section 91R of the Migration Act.

   Particulars

   a.At paragraph [99] of the decision, the RRT accepted that the applicant would be identified as a failed asylum seeker and as a person who departed illegally;

   b.At paragraph [100-104)] of the decision, the RRT accepted that the applicant had committed offences under Sri Lanka’s Immigrants and Emigrants Act;

   c.At paragraph [111] of the decision, the RRT “Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanism a lack of reform initiatives and instances of torture , maltreatment and violence” By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947.

2. The essence of the applicant’s allegation was that the Tribunal erred by not finding that his likely detention for a period upon his return to Sri Lanka would amount to serious harm for the purposes of the then ss.91R(1) and 91R(2)(a) of the Act which at that time provided:

   91R Persecution

   (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b) the persecution involves serious harm to the person; and

   (c) the persecution involves systematic and discriminatory conduct.

   (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   …

3. Such an allegation arises out of the decision of North J in WZAPN v Minister for Immigration & Border Protection (2014) 229 FCR 477. In that case, his Honour held that serious harm for the purposes of the then s.91R(1)(b) was constituted, relevantly, by a threat to life or liberty without reference to the severity of the threat. His Honour found that there was no place for a qualitative assessment of a detention affecting the right to liberty. In SZTEQ v Minister for Immigration & Border Protection (2015) 229 FCR 497, the Full Court of the Federal Court held that the then s.91R(2)(a) was not to be construed as meaning that any deprivation of liberty constituted serious harm for the purposes of the then s.91R(1)(b) and Article 1A(2) of the Convention. The Full Court was of the view that liberty was a nuanced concept which took its meaning from the context in which it appeared, in this case the requirement that the persecution involve serious harm.

4. In Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639, the plurality in the High Court stated that the decision of the Full Court in SZTEQ was correct and that North J’s construction of the then s.91R(2)(a) could not be sustained. Their Honours held that the application of s.91R(2)(a) for the purposes of s.91R(1)(b) required a qualitative judgment involving the assessment of matters of fact and degree. Consequently, to the extent that the present applicant alleged error on the part of the Tribunal by reason that it performed a qualitative assessment of the nature and degree of the harm which he might experience when in prison in Sri Lanka, he could not succeed.

5. The only other potential issue would be whether the Tribunal’s conclusion that such imprisonment or detention did not amount to serious or significant harm was erroneous for other reasons, but it was not suggested that the Tribunal’s conclusion was not otherwise open to it. 

Conclusion

1. In the circumstances, I find that the applicant has not raised an arguable case for the relief claimed.

2. Consequently, the application will be dismissed pursuant to r.44.12 of the Court’s Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  25 August 2015